Mexico Beach recall ruling: Three reasons Judge Goodman got it wrong
The judge refused to determine if the grounds for recall were supported by facts.
PANAMA CITY, FL - Circuit Judge James J. Goodman upheld the Mexico Beach recall petition last month, citing case law that it’s up to voters rather than the Court to decide if the allegations against Mayor Michele Miller were factual.
“The reasons for recall whether true or false do not affect the proceeding. Their truth or sufficiency is for determination by the electors alone.”See Bent v. Ballantyne, 368 So. 2d 351, 352 (Fla. 1979)
But Judge Goodman’s ruling ignored the most important aspects of that case as it applies to Mexico Beach. Judge Goodman’s decision is wrong for several reasons.
He conflated the facts in the petition with the facts of the controversy;
He gave judicial notice while ruling he had no authority to consider facts; and
He violated the rules of statutory construction.
The law and the allegations
Florida Statute 100.361(2)(1) provides for the recall of municipal elected officials based on any of seven grounds as it relates to their official duties: (1) malfeasance; (2) misfeasance; (3) neglect of duty; (4) drunkenness; (5) incompetence; (6) permanent inability to perform official duties; and (7) conviction of a felony involving moral turpitude.
The Recall Committee listed the following grounds for a recall election:
“Mayor Michele Miller should be recalled for malfeasance because, on April 30, 2023, she violated the Sunshine Law when she exchanged private electronic communications concerning Springbrook Software with members of the city council to discuss matters which would foreseeably come before the board for action.”
“Mayor Michele Miller should be recalled for misfeasance because contrary to the City of Mexico Beach ordinance 644, on July 27, 2023, she unilaterally directed a City of Mexico Beach employee to end services with one contractor and to authorize another contractor to access accounting systems (an official act) and without city council approval, exceeding her authority as Mayor.”
Judge Goodman used the following definitions:
Malfeasance: “The commission of some act which is positively unlawful.”
Misfeasance: “The performance, in an official capacity, of a legal act in an improper or illegal manner.”
Judge Goodman acknowledged that “the burden of establishing the propriety of the recall is ‘on those seeking to overturn the regular elective process to base the petition on lawful grounds or face the invalidation of the proceedings.’” See Gavin v. Jerome, 767 So. 2d 1190, 1193 (Fla. 2000).
He explained, “In accord with our system of due process, ‘an elected official has the right to challenge the legal sufficiency of a recall petition.’” See Thompson v. Napotnik, 923 So. 2d 537, 539 (Fla. 5th DCA 2006).
Mayor Miller argued that the allegations were insufficient as a matter of law because the allegation of malfeasance “failed to include the necessary facts to demonstrate a violation of the Sunshine Law.” In other words, it lacked any valid basis as required by statute.
The misfeasance allegation was void, argued Mayor Miller, because the petition didn’t identify the city employee or either of the contractors. And even if it did, Ordinance 644 pertains to employees rather than elected officials or contractors.
Both sides agreed that if either malfeasance or misfeasance was found legally insufficient, then the entire petition for recall would be null and void. This point alone proves that the Court has the authority to make such a ruling.
Just last year, case law reinforced that the grounds for recall are indeed subject to Court scrutiny.
“Petitions that make conclusory legal claims or are based on conduct that is lawful (or not unlawful) are facially invalid. For instance, a petition claiming that an official ‘violated the public meetings' laws - without supporting statement of facts demonstrating how - is legally insufficient.” See Burton v. Oats, No. 5D23-1573, at *17 (Fla. Dist. Ct. App. June 12, 2023).
This echoes what the Court made clear more than 70 years ago: If the grounds are supported by nothing more than the statement of a conclusion or opinion without any tangible basis in fact, then the grounds are not sufficient. See Richard v. Tomlinson, 49 So. 2d 798, 799 (Fla. 1951)
Judge Goodman’s task was not to decide if Mayor Miller should be removed for committing malfeasance or misfeasance. Rather, it was to determine if her actions listed in the petition rose to that level.
Let’s consider three ways in which Judge Goodman got it wrong.
Conflating facts in the petition with facts of the controversy
It’s true that the recall statute doesn’t delegate authority to the Court to determine if a mayor should be removed for committing malfeasance or misfeasance. That’s a political question for the voters to decide.
Since Mayor Miller challenged the recall petition in court, it was up to the Judge to determine if there was evidence of malfeasance or misfeasance. Was there a valid basis to support the grounds for recall or not? That’s a legal question for the Court to decide.
This is long established case law: While “the sufficiency of the charges for the recall of a public officer to cause the voters to require his removal is a political question to be determined by the people;” the legality of the proceedings is reviewable by the courts. See State v. Tedder, 106 Fla. 140, 146, 143 So 148 (1932)
Judge Goodman ruled that the Court “may not rule on the falsity of the charges or whether the ‘exchange’ included responsive e-mails.”
What is he talking about? It’s a fact that there were not any responsive emails, therefore there’s no “exchange.” A ruling was not required; only his acknowledgement. By definition, a Sunshine Law violation can’t be committed in this manner by a lone member of the city council.
No responsive emails means there’s no malfeasance. It’s legally insufficient as a matter of law. This fact alone required Judge Goodman to throw out the entire petition.
This is basic analytical reasoning. Law students must demonstrate their ability to determine what could or must be true based on specific facts and rules. They aren’t even accepted into law school without excelling on the Law School Admission Test (LSAT), which has an entire section dedicated to this type of logic.
No wonder columnist H.L. Mencken joked that “a judge is a law student who marks his own examination papers.”
Judge Goodman concluded that whether Mayor Miller “indeed took such actions or not and exceeded her authority as mayor is not for the Court to decide but a question for the voters.”
There’s no question that Mayor Miller sent the email. And there’s no question that nobody replied to it. Therefore, the voters had no malfeasance to consider. Why didn’t Judge Goodman rule that the allegation had no valid basis in fact?
We’re seeing more of this type of judicial malpractice lately. It’s akin to Circuit Judge Kelvin C. Wells’ recent refusal to determine if the State had lawful custody of attorney Hoot Crawford’s Marsy’s Law client when he took the 16-year-old girl to his office.
If the state never had lawful custody of the teenage victim, then Crawford couldn’t possibly have interfered with child custody. Likewise, if Mayor Miller’s actions didn’t constitute malfeasance and misfeasance, then she couldn’t possibly have committed those violations.
In both cases, the judges ruled that the accusations alone were sufficient without factual support simply because they were alleged in spite of overwhelming evidence to the contrary.
Judge Goodman instructed voters to make a decision based on grounds that didn’t exist in the same way that Judge Wells instructed the jury to render a verdict against Crawford on grounds that didn’t exist.
Facts matter so that voters and juries have correct information to make legitimate decisions. Judges who rubber stamp false accusations pervert justice and erode public confidence in the judiciary.
Judge Goodman’s erroneous judicial notice
Judge Goodman’s ruling contradicts itself. On one hand, he states that the Court has no authority to rule on the facts in the petition. But on the other hand, he rules that the petition is supported by facts.
Judge Goodman took judicial notice of Ordinance 644 that was cited by the Recall Committee to support the allegation of misfeasance. Judicial notice is a rule that allows a fact to be introduced if the truth of the fact is generally known or cannot be reasonably questioned.
The Recall Committee accused Mayor Miller of exceeding her authority by directing a city employee to “end services with one contractor and to authorize another contractor to access accounting systems - an alleged violation of Ordinance 644. But that ordinance applies to employees, not to elected officials or contractors.
So Judge Goodman tried to cure the Recall Committee’s failure. He took judicial notice to point out that Ordinance 644 was amended by Ordinance 798, which states that “no elected official shall instruct or direct any city employee in the performance of their daily job tasks but shall act through the City Administrator.”
Then Judge Goodman made the following assertions:
“Indeed, the applicability of a city ordinance concerning a policy for employees’ conduct to the mayor depends on the specific language of the ordinance as well as the powers and duties of the mayor that are outlined in the city charter.”
“Moreover, case law throughout the state confirms that the powers of a mayor could be limited or subjected to some reasonable rules and regulations prescribed by the city council.”
“Indeed, a mayor, as the chief executive officer of the city, is generally expected to ensure compliance not only with the charter but also with the ordinances of the city.” He cites Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982)
Even if Judge Goodman had begun a sentence with “indubitably,” he’s still using Tweedledee logic.
“If it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.” - Tweedledee, Alice in Wonderland
Judge Goodman’s second assertion is especially problematic because it lacks context and specificity. He claims that city councils can prescribe “reasonable” rules and limitations on mayors.
But he ignores the fact that there are different types of city governments throughout the state. Some cities have a strong-mayor form of government while others have a weak-mayor form of government depending on their city charter, which can’t be altered by the city council without a referendum by the voters.
Incredibly, the Judge cites Lomelo, case law in which the mayor for the City of Sunrise was indicted and charged with corruption by threatening a public servant. Their city charter delegated the mayor to enforce the laws and rules of the city.
This is very different from the charter of Mexico Beach, which instead directs the Council to enforce the duties and responsibilities imposed on the city by law.
In support of the Recall Committee’s allegation of misfeasance, Judge Goodman cited another case comparing the actions of a city councilwoman in a council-manager form of government (weak mayor in Smyrna Beach) to Mayor Miller’s actions in a mayor-council form of government (strong mayor in Mexico Beach).
This is like comparing apples to semi-trucks. His erroneous judicial notice opened several cans of worms, and led him down yet another rabbit hole.
Violating the rules of statutory construction
A legal doctrine known as the rules of statutory construction prevents an entity from being more powerful than its creator. That’s why city ordinances can’t supersede county ordinances, and why county ordinances don’t supersede state statute.
Likewise, a city ordinance doesn’t supersede the city charter. And any ordinance that is in conflict with the charter is illegitimate. City ordinances must be harmonious with the city charter, county ordinances, state statute, state constitution, federal acts, and the U.S. constitution.
This point is made in Mexico Beach’s exhaustive 2015 legal opinion.
“A municipal charter is the constitution of a city and effectively limits the legislative power of a city in the same manner the state constitution limits the power of the legislature.” See Gontz v. Cooper City, 228 So. 2d 913 (Fla. 4th DCA 1970)
The rules of statutory construction mandate that language is interpreted with its plain and ordinary meaning. The charter of Mexico Beach was clear and simple: “The mayor shall be the chief elected administrative and fiscal official of the City.”
This is explained in Mexico Beach’s 2015 legal opinion: “The Mayor has powers beyond those of another individual council member, though those powers are not specified clearly.”
It states that Mexico Beach’s ordinances that formally created the city administrator position “should not be interpreted to have established a council-manager form of government by removing the Mayor’s powers and granting them to the City Administrator.”
Not only did Mayor Miller have the city charter and the law on her side, she had the city’s long-standing customary role of a strong mayor form of government as well.
During a city council meeting in 2022, then-Mayor Al Cathey said that the charter delegates the mayor as the CEO and CFO of the city. Then all five members of the council voted to give themselves a raise, with the mayor making a higher salary because of the additional responsibilities.
Not to belabor the point, but earlier this year, the Legislative Auditing Committee declared that Mexico Beach was a “strong-mayor form of government.” State Representative Griff Griffitts nodded his head in agreement.
Judge Goodman knows the rules of statutory construction. He’s aware of all of this. But he noted in his ruling that “Neither party asked the Court to consider the City Charter.”
Well, neither party asked the Court to consider the amendment to Ordinance 644 either. But the Judge did so anyway with his fallacious judicial notice. He certainly could have chosen to take legitimate judicial notice regarding the supreme governing document of the city.
Even so, it’s not true. Mayor Miller’s central argument was that the city charter placed additional duties and responsibilities on the mayor as the chief elected administrative and fiscal official. Or as former Mayor Al Cathey called it, “the CEO and CFO of the city.”
Judge Goodman was unpersuaded by logic and case law establishing that recall petitions are facially invalid if they make conclusory claims without evidence about conduct that is lawful (or not unlawful).
His ruling was sloppy, argumentative, and flawed. He allowed the Recall Committee’s false accusations to subvert last year’s legitimate mayoral election.
Judge Goodman’s mockery of the court requires an immediate appeal.